COVID-19 and HyFlex-style distance education: Key takeaways from the ruling on Centre de services scolaires du Lac-Témiscamingue and Syndicat de l’enseignement de l’Ungava et de l’Abitibi-Témiscamingue

In light of the current health crisis, many schools are implementing a HyFlex (or hybrid-flexible) teaching model for primary and secondary school students who cannot attend class in person for reasons related to COVID-19.

HyFlex teaching involves offering classes simultaneously to students present in class and those at home via a videoconferencing system installed in the classroom. This allows students at home to maintain their academic progress without falling behind.

This teaching model is also in line with several ministerial decrees adopted by the Quebec government that require accessible distance education options for students who must stay home for the sake of their health or the health of those with whom they live.

On December 23, 2020, arbitrator Jean-Guy Ménard issued an important decision concerning the implementation of a HyFlex teaching model.¹ In this case, a school service centre had arranged HyFlex teaching for two high school students who were barred from attending school for reasons related to COVID-19. According to the school service centre, there were no other reasonable measures available to ensure a comparable quality of instruction for the students in question.

The teachers and their union objected to this system and filed a grievance, alleging violations of the Quebec Charter of Human Rights and Freedoms² (the Charter) based on the following:

1. the infringement of teachers’ right to privacy under section 5 of the Charter;
2. the imposition of an unfair and unreasonable condition of employment, in violation of section 46 of the Charter, resulting from the “continuous and constant” camera surveillance.

It is essential to note that, pending the decision on the grievance, the service centre had, in good faith and of its own free will, set up a system of distance education for the students. This system used the services of a few first- and second-year Bachelor of Education students who were not legally qualified, a part-time teacher at the end of her maternity leave, and two regular teachers.

In his ruling, arbitrator Ménard determined that:

• The HyFlex system implemented by the service centre does not infringe on teachers’ right to privacy, given that their expectation of privacy is very low in the context of their teaching; the possibility of students recording and broadcasting images is more or less similar to the possibility of such activities in the context of classroom teaching; and the “surveillance” by parents is subject to the rules imposed on them by the service centre.³
• However, the arbitrator found that the teachers were deprived of fair and reasonable working conditions in this case, as the service centre focused all its efforts on identifying ways to provide quality education to students but did not recognize the degree to which HyFlex teaching would affect teachers already heavily impacted professionally by the pandemic. Thus, the service centre should have examined whether there were viable alternatives to the HyFlex teaching model.

The approach favoured by arbitrator Ménard seems strongly influenced by the particular circumstances surrounding this dispute, namely the alternative distance education system put in place by the service centre after the grievance was filed. Indeed, while recognizing this system’s precarious nature, the arbitrator determined that the teachers’ right to fair and reasonable working conditions requires that this measure be maintained as long as it provides sufficient quality of education to the remote learners. However, should the quality no longer satisfy the service centre, the arbitrator stated that the situation could change, implying that the school service centre could eventually impose the HyFlex model on teachers.

In practice, this decision allows educational institutions to consider HyFlex teaching as a last resort, provided that they first examine other reasonable approaches to providing services of acceptable quality to remote students (including the use of non-legally qualified staff to some extent).

This decision also highlights the need for careful management when implementing a HyFlex teaching model to ensure that the infringement of teachers’ rights is minimal. To this end, we advise that there be strict rules in place for participation in courses broadcast on your videoconferencing platform, and a commitment by parents and students to abide by them. We can assist you with drafting these rules. We will continue to follow the developing jurisprudence on these matters with great interest. Please do not hesitate to contact a member of our team if you have any questions regarding the application of these principles in your institution.

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¹ Centre de services scolaire du Lac-Témiscamingue and Syndicat de l’enseignement de l’Ungava et de l’Abitibi-Témiscamingue. SAE 9488 (Jean Guy Ménard, Arbitrator).
² Chapter c-12.
³ In this case, the parents and students had signed a confidentiality agreement intended to govern the HyFlex model.